One of John Grisham’s celebrated novels titled “The Firm” revolves around the life of a young law associate faced with the dilemma of disclosing legally privileged confidential information about his mob-clients and subsequently losing his license. The movie with the same name starring Tom Cruise is equally fascinating with the whole story spinning around this dilemma.
Few can deny that one can learn more about legal privilege by watching Hollywood movies and sitcoms like Boston Legal than from reading Indian law on the subject. It is tragic that despite being acknowledged as one of the most paramount civil rights in the rest of the common law world, trifling importance is accorded to it in India. Notwithstanding it being provided for in Sections 126 to 129 of the Indian Evidence Act, our courts have failed to mount elaborate debates/discussions on the principle, as a consequence of which, the extent and applicability of the principle remains cloudy and abstract.
The concept of privilege flows from the premise that the law recognizes the exchange of information, between a certain set of people, holding a certain relationship, as sacrosanct. The only permissible exception to this is the divulsion of information with the express permission of the person giving the information.
In law, any conversation or exchange of information between a lawyer and his client is protected by the law of privilege. In a system that refuses to recognize the ignorance of the law as an excuse, the advice of well-qualified lawyers is one of the principal means by which a person can gain necessary knowledge of the law. Clients must be able to put forth all the information available at their disposal to their lawyers, who, based on the information given them, are able to arrive at the best course of action and evaluate the chances of success. While it is acknowledged that there is a strong case for public interest governing the public disclosure of delicate information, this argument is counterproductive inasmuch as such interest in itself would be defeated if communications between individuals and their lawyers were subject to being disclosed, as it would merely inhibit the divulsion of confidential/private information for fear that it may be used against the individual at some forum.
Moreover, in order to ensure that there are no inhibitions on part of the client when divulging the information, the privilege is considered absolute in nature, i.e. without any exceptions. This has been the case in almost every developed legal system and is considered to be essential to the maintenance of rights. Surprisingly, the principle has also found recognition by the Bombay High Court in a 2002 case of “Larsen &Tourbo Ltd. v. Prime Displays”. Surely then, it would appear that privilege bars the determination of the truth, and it is for this reason that privilege extends only to information generated for the purpose of seeking legal advice and any such advice already existing is not covered by the doctrine. After all, it is almost never the case that culpability be based solely on the information given to the lawyer and it is for the various investigation agencies to arrive at the truth by other legitimate means.
However, most importantly, the privilege belongs to the client who may be an individual, corporate or even a state institution.
It is in this light that one must examine the recent order by the Chief Information Commissioner. It is a rather contentious order which holds that legal opinions given by the Attorney General and other law officers ought to be made the subject of the Right to Information Act, 2005. Noteworthily, this order was passed in the context of whether Swann Telecom ought to be investigated by the MCA in the volatile 2G spectrum matter. The dominant influencing factor in the CIC’s decision is the overarching public interest in the divulsion of the Attorney General’s opinion. The Order itself has disastrous consequences on the law of privilege. Even the Government, as a legal ‘person’ would require an appropriate atmosphere to discuss its matters with lawyers. However, what is most troubling is the expression ‘public interest’. The vague phraseology paves way for unscrupulous usage of this exception, and it raises more questions than it answers- what exactly is ‘public interest’?, according to whom, and to what guidelines are we to define this concept? These are only a couple of the questions that are likely to arise. That having been said, it is impossible to arrive at a concrete determination as to the limits of ‘public interest’. The Government is now deliberating as to whether to abide by the decision of the CIC or appeal against the same.However, it would do well to remember that the text of the Right to Information Act, 2005 does not make any reference to legal privilege as a ground on which disclosure to the public can be withheld. Section 8 of the RTI Act further contemplates that even assuming the said information to be exempt from disclosure, it can only be disclosed if public interest so mandates. This is a grave anomaly and represents the glaring ambiguities between common law rights and those granted by statute in India.
Denying privilege would put further pressure on the lawyers giving advice in such cases since their opinions would now be subject to public scrutiny- not just legal scrutiny- as a result of which they would be busy covering their tracks rather than giving correct advice in light of the facts presented to them.
However, India is not the first country to be faced with such a problem. Countries like the United Kingdom and Australia that have similar laws on the right to information have had to make accommodations for legally privileged information. The result of extensive deliberation by their courts on the law of legal privilege has been a consistent, and rather right pronouncement, that the public interest in the preservation of legal privilege far outweighs any other public interest. The same ought to be the case in India and the opinions by the law officers ought to be excluded from the purview of the RTI Act. .
As has oft been the case, singular decisions have had tumultuous effects on the law. In 1967, one witnessed such an effect with jury trials being abolished after Nanavati’s case. While the provisions in the Evidence Act are clear on this issue that privilege ought to be accorded without exceptions, ordering that such legal opinions be made public would have cataclysmic consequences in the future. This is, perhaps, an opportune moment for the Courts elucidate the law on the subject.